How to Survive a Visit from OSHA

As the season kicks off, contractors are reminded to address training and safety with their crews. This is not only important to ensure safe worksites, but it is also necessary to properly follow the Occupational Safety & Health Administration's requirements.

In the National Pavement Expo seminar "Complying with OSHA…What to Do If OSHA Drops In" attorney Adele L. Abrams offered contractors several tips for complying with the Occupational Safety & Health Administration (OSHA) standards. By following her suggestions, contractors can help their crews work more safely and can teach them how best to cooperate with OSHA should the company be subjected to an inspection. Abrams said that preparing for an OSHA inspection begins long before OSHA ever visits and should be a part of the regular practice and systems of every contractor.

OSHA Basics

According to Abrams, OSHA focuses on enforcement, not safety. She said OSHA regulations are minimum standards that must be met but added that meeting minimum standards does not ensure a safe workplace. She said companies should never be cited for only meeting the minimum OSHA requirements but companies can be cited for unsafe practices even if minimum standards are met.

Abrams said OSHA must meet several requirements before they can cite a company. These requirements include:

OSHA must have jurisdiction

The violated standard must apply to the cited employer

The standard's requirements were not met

The employer must have knowledge that the standard isn’t being met

Abrams added that OSHA has the initial burden of proof after citing an employer for a violation.

She said that while the most commonly cited standards are not in the pavement industry (the top four are violations of scaffolding, hazard communication, fall protection and respiratory protection) contractors need to make sure they are following proper procedures to protect their crews.

Employee Training

Abrams said proper training for every employee is essential to meeting OSHA standards, adding that it’s important to document the training every employee completes. While the training protects the employee the documentation is necessary to protect the employer should an accident occur on the jobsite.

She said that for the pavement maintenance industry one of the most important aspects of training might involve the use of hazardous chemicals and materials. Abrams noted that each time a new chemical is used in the company a proper training must be completed — and documented — making employees aware of physical and health hazards as well as proper handling.

Whether employers are completing standard safety training or chemical safety training, Abrams says it is necessary to complete all work instructions and training in English and Spanish.

Documentation and disciplinary actions

Just as documentation is essential for any training, Abrams said employers must make sure to document each employee misconduct and accident that occurs on the jobsite. This documentation trail will show OSHA that the company had employees complete the proper training and that rules were in place should unforeseeable employee misconduct occur.

"By documenting all training you can show that you trained the employee on the situation, the employee broke the rules, and that you enforced the rules," Abrams said, adding that it is necessary for employers to document every enforced safety discipline. "Most employees do not go beyond a verbal citation," Abrams said. "I recommend writing a memo to file, even if you only give a verbal warning."

She suggested the documentation include the employee's name, the date of the incident, and a description of the violation. She recommended that if an employee breaks the same rule three times he or she should be sent home with the third warning. By documenting the verbal warnings the company will be able to prove the employee broke the rules and received warnings before being sent home — preventing the employee from making erroneous claims against the company.

What if OSHA Stops In?

Abrams said that preparation for an OSHA inspection needs to occur well before any inspection. She said every contractor should train several people to accompany an OSHA inspector and that employees should be taught about their rights prior to any OSHA investigation.

Abrams said that if an OSHA representative visits your company to conduct an inspection it’s essential to remember:

Nothing is off the record

Employers are not required to give a statement during any inspections or investigations

People who choose to speak with OSHA do have the right to council

Management must never tell its employees not to speak to OSHA because this is considered obstruction of justice and/or conspiracy

Do not record audio or video of interviews with OSHA

She said that of all the information available regarding OSHA, the most important to note is that nothing is off the record with OSHA. By taking the steps to properly document information and meeting the standards, companies can be better prepared to handle an OSHA inspection.

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What's the 'General Duty Clause'?

The General Duty Clause is used by OSHA as a "gap filler" to supplant specific standards. Attorney Adele L. Abrams said that in some situations, if OSHA discovers a "known" hazard to which the company has exposed its employees — but for which OSHA doesn’t have a specific standard to point to — OSHA can cite the company under the General Duty Clause.